Odes v General Medical Council [2010] EWHC 552 (Admin)

[2010] EWHC 552 (Admin)Case No CO/4307/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 March 2010
Before
MR JUSTICE HICKINBOTTOM
Between
DR ROBERT ALLAN ODESAppellantGENERAL MEDICAL COUNCILRespondent
The Appellant appeared in person. for in personMiss Gemma White (instructed by Andrea James, Solicitor) for Respondent.Hearing Hearing dates: 23 February 2010
JUDGMENT

Introduction

[1]The Appellant Dr Robert Allan Odes qualified as a medical practitioner in 1981, and worked as a Locum Consultant Physician in General (Internal) Medicine and Cardiology at the Doncaster Royal Infirmary (“the hospital”) from 17 January 2004 and at all times material to the issues in this appeal.[2]This is an appeal brought by him under section 40 of the Medical Act 1983 as amended (“the 1983 Act”) against the decision of a Fitness to Practise Panel of the General Medical Council (“the GMC”) made on 26 March 2009. Reflecting the requirements of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004 No 2608) (“the 2004 Rules”), the Panel made a four-staged determination that day, dealing with findings of fact, impairment and sanction, and finally whether the sanction should be imposed immediately. On the basis of the allegations it found proved in relation to two patients under the Appellant’s care at the hospital, the Panel found the Appellant’s fitness to practise was impaired by misconduct, and it suspended his registration for four months although not with immediate effect. The suspension will only take effect after the determination of this appeal, if and to the extent that the appeal is unsuccessful.[3]The Appellant now appeals against the Panel’s findings in relation to the facts, impairment and sanction. Following a hearing on 23 February 2010, the GMC made further written submissions on 26 February and the Appellant made further submissions on 2 and 15 March 2010, which this judgment has taken into account.

The Charges

[4]The charges against the Appellant before the GMC arose out of the treatment of two patients in 2004 (Patient B) and 2006 (Patient A). Patient B[5]Patient B, then a 49 year old man, was admitted to the hospital in January 2004 with a spontaneous pneumothorax (i.e. air between the lung and chest wall) for which, under the care of the Appellant and his team, he was treated with a series of chest drains. He developed surgical or subcutaneous emphysema (i.e. air under the skin), a recognised complication of such drains, which caused the patient at least some discomfort. The Appellant’s team sought advice from the Cardiothoracic Team in Sheffield, on 26 and again on 27 January. On the first occasion, they were advised to leave the chest drain in, and to apply suction to it: and, on the second occasion, they were advised by a Cardiothoracic Surgical Registrar to keep the drain in for 48 hours with increased suction and, if there was no improvement in Patient B’s condition after 48 hours, to refer the patient back to the Cardiothoracic Surgical Team.[6]However, on 28 January, during a routine ward round, the Appellant removed the chest drain in precise circumstances that were in issue before the Panel. Patient B’s condition deteriorated, his pneumothorax recurred, and his care was handed over to the Respiratory Team. A further drain was inserted later that day (28 January), and his condition began to improve.[7]Before the Panel, the Appellant accepted that he removed the drain on 28 January 2004 contrary to the advice of the Cardiothoracic Registrar of the previous day and without consulting the hospital’s Respiratory Department. The Panel additionally found that:(i) The removal of the drain was inappropriate in that it was contrary to the advice of the cardiothoracic specialist (Heads of Charge Paragraph 2(c)).(ii) His conduct in removing the drain in these circumstances was not in the best interests of the patient, and of a standard of care below that expected of a registered medical practitioner (Heads of Charge Paragraph 2(e)).[8]The Appellant appeals against those two findings. Patient A[9]The second incident involved a 67 year old woman, Patient A. Following two weeks’ of sciatica, she was referred to the hospital on 28 January 2006 complaining of pain in her right hip and lower right side abdomen. She was admitted by a registrar in the Appellant’s team, Dr Paraiso, who took a detailed note. That note recorded a markedly raised white cell count, neutrophil count and C-reactive protein, which strongly suggested infection. On admission, Dr Paraiso arrived at a differential diagnosis, recorded under the heading “Imp” (i.e. “Impression”), including “(1) Possible sepsis, query septic arthritis, but improved LFT [liver function test] and no fever. Cholangitis - no abdo[minal] pain, no fever….”[10]The Appellant first saw Patient A the following day, on his ward round. He referred her to an Orthopaedic Consultant (Mr Hari Kumar) for an opinion. Having assessed the patient, Mr Kumar noted osteoarthritis on the x-ray, considered the possibility of bone cancer and requested a bone scan. He did not refer to infection of the hip at all: and, by implication, the Appellant thought that Mr Kumar had discounted the possibility of infection of the hip.[11]However, Patient A developed further symptoms. Treatment with broad spectrum antibiotics was continued. The symptoms abated, and Patient A was transferred to a Rehabilitation Ward on 22 February and discharged on 10 March 2006.[12]Unfortunately, the patient relapsed, and was readmitted on 22 March 2006, coming back into the Appellant’s care the following day. The Appellant first saw the patient again on 31 March, when he was concerned that the hip was septic, and he commenced antibiotics for that sepsis. The patient’s condition deteriorated and, on 4 April, she was transferred to Mr Kumar’s Orthopaedic Team who arranged for a number of urgent operations on the hip. However, sadly, Patient A died on 17 May 2006.[13]The charges arising from that patient care, all of which the Panel found proved, were as follows:(i) During a ward round on 29 January 2006, the Appellant did not: (a) adequately examine Patient A (b) adequately review the previous differential diagnosis made upon admission by Dr Paraiso (c) consider the possibility of septic arthritis (d) take into account that the white cell count and inflammatory markers were markedly raised (e) adequately investigate the possibility of sepsis and (f) provide (i) leadership or(ii) guidance in Patient A’s ongoing care (Heads of Charge Paragraph 3). (ii) Following Mr Kumar’s consideration of the patient and a discussion with a Senior House Officer in his own team on 31 January 2006, the Appellant did not: (a) enter a differential diagnosis in Patient A’s records (b) enter a management plan in Patient A’s records (c) initiate an investigation into the source of Patient A’s infection and the Appellant did (d) recommend treatment with broad-spectrum intravenous antibiotics (Heads of Charge Paragraph 4).(iii) Between 28 January (when the Appellant first saw Patient A) and 10 March 2006 (when she was first discharged), the Appellant did not (a) have significant involvement in Patient A’s treatment (b) take the lead in initiating steps to try and identify the source of Patient A’s infection (c) adequately supervise junior doctors involved in Patient A’s care (d) attempt to make a definitive diagnosis of Patient A’s condition (e) seek a second opinion from a specialist geriatrician (f) ensure that patient A’s care was properly recorded in the notes on a daily basis and (g) ensure that any involvement of the Appellant in Patient A’s care was properly recorded in the patient’s records (Heads of Charge Paragraph 5).(iv) Between 22 March (when Patient A was readmitted) and his review on 31 March 2006 (when the Appellant first diagnosed septic arthritis), the Appellant did not (a) review Patient A (b) have significant involvement in her treatment (c) provide a lead in following up her investigations and treatment (d) act upon the previous possible diagnoses and in particular consider the possibility of septic arthritis (e) adequately supervise the junior hospital doctors involved in her care and (f) ensure that any involvement of the Appellant’s in her care was properly recorded in the patient’s records.[14]The Appellant challenges each of those findings of fact, and also the further finding (pursuant to Heads of Charge Paragraph 7) that, save for one exception (that he did not seek a second opinion from a geriatrician: see Paragraph 13(iii)(e) above)), the acts and omissions in relation to Patient A as alleged in Heads of Charge Paragraphs 3-6 were not in the best interests of that patient and were of a standard of care below that expected of a registered medical practitioner.

Preliminary Points

[15]Before I turn to deal with the grounds of appeal upon which the Appellant relies, some overarching preliminary points may assist.[16]First, an appeal from the Panel to this court is by way of rehearing, rather than review; and an appeal will be allowed if the court is satisfied that the Panel was wrong. However, the Appellant seeks to challenge factual findings relating to him as a medical practitioner, as found by his professional disciplinary body: indeed, the Appellant’s challenge to those findings of fact lies at the very heart of his appeal. Under the 1983 Act and 2004 Rules, the GMC has been appointed by Parliament to discipline and regulate that particular profession. It has been rightly said that such bodies are best placed to judge appropriate standards for the relevant profession (see, e.g., Raschid & Fatnani v General Medical Council [2007] EWCA Civ 46 at [16]-[20]), and certainly their judgment in relation to matters involving professional judgment is worthy of very considerable respect. I return to the proper approach of this court to challenges to factual findings of a GMC panel below (Paragraph 31).[17]Second, in respect of some of the Panel’s findings, the Appellant’s complaint is as to the adequacy of their reasons. Professional bodies such as the Panel have a duty to give reasons, but that duty does not require them to give a judgment that might be expected, for example, in a court of law. The parties must simply be able to understand why one party has won and the other lost (English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at 2417). In considering its reasons, the Panel needs simply to ask itself: “Is what we have decided clear? Have we explained our decision, and how we have reached it, in such a way that the parties before us can understand clearly why they have won or why they have lost?” (Phipps v General Medical Council [2006] EWCA Civ 397 at [85]); but, reflecting the sentiments of English v Emery Reimbold). That does not generally require the Panel to identify “why, in reaching its findings of fact, it is thought to accept some evidence and to reject other evidence” (R (Luthra) v General Dental Council [2004] EWHC 458 (Admin) at [22] per Elias J (as he then was)). Luthra pre-dates Phipps but, as a general proposition, that remains good; although of course subject to the caveat that it may be necessary in a particular case to elaborate to ensure a party understands why he has won or lost.[18]Finally, the Appellant complains that the GMC “suppressed” evidence that may have had a bearing on the case before the Panel, that evidence being listed in the Appellant’s Response to the Respondent’s Skeleton Paragraph 34. My understanding is that this material was always available to the Appellant, but it was not included by either party in the bundle for the hearing before the Panel. When it was suggested by the Appellant’s representative that he may wish to refer to it, there was a discussion: and it was eventually not pursued (see, e.g., Transcript D1/93F and following). In any event, having considered the nature of these documents (which are mainly secondary evidence), I am satisfied that, if they had been deployed, they would not have affected the findings of the Panel.[19]I now turn to deal with the specific grounds of appeal. I will deal first with two grounds that relate to both patients, and then those which are patient-specific.

Grounds of Appeal: General

[20]First, the Appellant submits that the Panel adopted the wrong standard of proof, applying the balance of probabilities rather than the higher standard of beyond reasonable doubt (see, e.g., Grounds Paragraph 9, and Supplementary Skeleton Paragraph 57). However, by Rule 34(12) of the 2004 Rules, the appropriate standard of proof is that applicable in civil proceedings, i.e. the balance of probabilities - no more, and no less. The second paragraph of the Panel’s determination on the facts makes clear that the Panel adopted the correct standard.[21]Second, the Appellant submits that the expert witness called by the GMC to give evidence at the Panel hearing (Dr Neil Ineson) was biased against Dr Odes, because he admitted that he was not conversant with the GMC guidelines for expert witnesses, which require witnesses to be “bias-free” (Grounds Paragraph 8).[22]Dr Ineson is a Consultant General Physician, with a sub-interest in cardiology, who at the time of the Panel hearing was the lead clinician in the Medical Assessment Unit at the Frimley Park Hospital, Surrey. He was cross-examined by Dr Odes’s representative at the hearing (Mr Moore) on the role of expert witnesses (Transcript D3/39E and following). He accepted that he was not necessarily acquainted with the GMC guidelines for experts that were published on the internet: he said he read the guidelines that were sent to him when he was asked to produce a report. The guidelines require an expert witness not to be biased towards their paying agent. Dr Ineson acknowledged that, and said that he hoped the evidence he gave was balanced and a fair reflection on the information he was presented with (Transcript D3/40D). It is upon that exchange that the Appellant founds his submission that Dr Ineson was biased.[23]With respect to the Appellant, that submission has no proper basis. Dr Ineson may not have been aware of the up-to-date GMC guidelines for expert witnesses, but he did not suggest that his evidence was anything other than non-partisan. He made clear that, in his view, it was fair and balanced. The Appellant does not identify any part of Dr Ineson’s evidence that was or may have been biased or partial: there is simply no evidence that he was in any way less than properly balanced in his opinions, as between the Appellant and the GMC. That, on certain issues, his opinions were adverse to the Appellant’s case is, of course, not in itself evidence of bias or partiality. There is no basis for a suggestion that a well-informed observer might have perceived the Panel as being biased against the Appellant: nor does the Appellant make any such suggestion.[24]This submission could only have force if the hearing was rendered potentially unfair by some form of bias or lack of partiality. I am quite satisfied that there is no such potential in this case. Grounds of Appeal:

Patient B

[25]In relation to the removal of the chest drain from Patient B, the Panel found that the removal of the drain was inappropriate in that it was contrary to the advice of the cardiothoracic specialist (Heads of Charge Paragraph 2(c)). In respect of reasons, the determination said:

Grounds of Appeal: Patient B

“In reaching its decision on the disputed facts… in relation to Patient B, the Panel has taken into account the significant difference between your evidence and the evidence provided by Patient B. The Panel is of the view that Patient B was a credible witness who gave an honest account as far as his memory permitted. The Panel considers that he would be very likely to remember whether or not he was in pain at the time the chest drain was removed. The Panel is also of the view that Dr van der Riet (formerly Dr Holcombe), a junior doctor involved in the care of Patient B, gave a reliable account before it. This is despite the fact that her written accounts appeared to be contradictory in that while she recorded that the chest drain was removed because ‘surgical emphysema remains’ without any reference to pain being present, mention of pain was recorded on her referral note to Dr Highcock, the Respiratory Physician. On the balance of probability the Panel concluded that the degree of pain being suffered by the patient prior to the withdrawal of the drain was not such a significant factor as to be a cause for its removal. Furthermore, the Panel accepts Dr Ineson’s evidence, that even if the patient was in significant pain, your action was inappropriate.”
[26]The Appellant correctly identified that the Panel effectively made two relevant related findings, namely(i) that there was no good reason to remove the chest drain, the degree of pain being suffered by the patient being insufficient to amount to good cause: and(ii) even if the patient was in significant pain, it was inappropriate to remove the drain as being contrary to the advice of the Cardiothoracic Surgical Team (at least, without seeking the further advice of that team).[27]The Appellant accepted during the course of argument before me that, if there had been no good reason to remove the drain, it would have been inappropriate for him to have done so. However, he submitted that there was a good reason, namely that the patient was in substantial (indeed, “severe”) pain and distress as a result of the subcutaneous emphysema that was a side effect of the drain.[28]As the Panel determination indicates, there was a stark conflict of evidence as to the pain that Patient B was in at the time of the drain removal. The patient himself said (Transcript D2/2B and following) that he was “feeling all right” and calm prior to the removal of the drain. He became annoyed when the Appellant started to take out the drain without explanation, because he had been told he would have the drain in with suction for a number of days. He immediately started to shout at him to stop. With regard to pain, he said (Transcript D2/17H):
“I am telling you now, before the doctor came in, I was in no pain. After the chest drain was removed, that was when the pain came.”
He was adamant that he was in no pain immediately prior to the removal of the drain (Transcript D2/16H, 17H and 24H).[29]However, the Appellant said that, when he saw Patient B on his routine ward round, the patient was in profound discomfort, short of breath and with severe pain caused by the subcutaneous emphysema along his chest and neck; and so he removed the drain and applied pressure to the skin wound which caused the patient to experience immediate relief from his symptoms (Supplementary Skeleton Paragraph 42: and Transcript D4/43 and following). It would make no sense, he submitted, for him to have wasted time removing a chest drain on a busy ward round, if it were not necessary. He accepted that the clinical notes were inadequate - Dr van der Riet, a junior doctor accompanying the Appellant on the round had written merely that the patient was distressed and short of breath. In her oral evidence, Dr van der Riet said that, in a perfect world, she hoped she would have made reference to pain if the patient was complaining of pain (Transcript, D2/69D-E): but her recollection at the time of her evidence was not good. However, the referral note to Dr Highcock, also written by Dr van der Riet, said:
“As the patient was distressed with chest pain and emphysema today the chest drain was taken out.”
[30]Before me, the Appellant submitted that the Panel ought to have found Patient B to have been an unreliable witness, because he admitted in his evidence that his recollection was poor (see, e.g., Transcript D2/13): for example, he mistook Dr Highcock for the Appellant at the hearing, and testified that Dr Highcock had re-inserted the chest drain whereas it had been Dr Highcock’s Registrar. Further, the patient’s annoyance was neither recorded in the medical records, nor was it recollected by Dr van der Riet. In the circumstances, he submitted that the Panel erred in finding that Patient B “was a credible witness who gave an honest account as far as his memory permitted”. Certainly, he said, if the Panel were to disbelieve the Appellant’s evidence in favour of that of the patient, they erred in failing to give adequate reasons for that preference.[31]Of course, whilst one has to keep such benefits in perspective (see Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [23], to which the Appellant referred me), the Panel had two advantages over this court, namely the benefit of hearing live evidence from all of the witnesses (including Patient B, Dr van der Riet and the Appellant) and relevant professional expertise which is an advantage to those making factual findings in a clinical context. This court will not interfere with factual findings of a disciplinary panel unless satisfied that those findings are wrong: and, therefore, although an appeal is by way of rehearing, it will be cautious in holding factual findings are wrong when it has not had the advantage of seeing and hearing the witnesses. The correct approach was set out in the opinion of Lord Thankerton in Thomas v Thomas [1947] AC 484 at pages 488-9, specifically adopted in the context of issues of credibility and reliability of evidence before disciplinary panels in Gupta v General Medical Council [2001] UKPC 29; [2002] 1 WLR 1691. His Lordship said the following (adopting the passage to disciplinary panels):
“I. Where a question of fact has to be tried by a [disciplinary panel], and there is no question of misdirection of [themselves], an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the [panel] by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion. II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. III. The appellate court, either because of the reasons given by the [panel] are not satisfactory, or because it unmistakeably appears from the evidence, may be satisfied that [the panel] has not taken proper advantage of [their] having seen and heard the witnesses, and the matter will the become at large for the appellate court…”
[32]As I have indicated, the Appellant’s evidence was firmly to the effect that, when he saw him on his ward round on 28 January 2004, Patient B was in considerable pain as a result of subcutaneous emphysema sufficient to warrant the removal of the drain immediately: and that is why he did remove the drain immediately. He maintains that the patient was in “severe pain” (Supplementary Skelton Paragraph 42). The patient’s evidence was that he was not in any such pain. The absence of pain was supported to an extent by the clinical notes. On the ward round on 27 January, another doctor (Dr Rajasekaran) noted, “Feels better, denies any pain, comfortable at rest”. The nursing notes timed at 4.20am on 28 January note:
“Initially slight discomfort from chest drain, slight but appears no associated respiratory distress”
. As I have already indicated, although her referral note to Dr Highcock does refer to “pain”, Dr van der Riet’s clinical notes of the ward round on 28 January at which the drain was removed do not refer to pain.[33]Therefore, there was clearly evidence upon which the Panel were entitled to find that Patient B was not in significant pain immediately before the chest drain was removed, and that the pain and distress that he was in was insufficient to amount to a good reason for removing the drain. In particular, they were entitled to find the patient a credible witness, and prefer his evidence (supported as it was to the extent I have indicated) to that of the Appellant. And, although they were not bound to give extensive reasons as to why they preferred the evidence of one witness over that of another (see Paragraph 17 above), in their determination the Panel did identify one particular factor that weighed with them, namely that the patient “would be very likely to remember whether or not he was in pain at the time the chest drain was removed”.[34]The Panel saw and heard the relevant witnesses and, in relation to this issue of credibility, that was, in my judgment, a significant advantage for them over this court. In all of the circumstances, I cannot say that the Panel’s finding of fact - that there was a good reason for removal of the chest drain, namely the degree of pain being suffered by Patient B prior to its withdrawal - was wrong.[35]That, as the Appellant conceded, is sufficient to dispose of the appeal in relation to this finding of fact with regard to Patient B. However, I should briefly mention the Panel’s second reason for finding that the removal of the drain was inappropriate: because they found that, even if the patient was in significant pain, the removal of the chest drain would still have been inappropriate.[36]The Appellant relied upon evidence of his immediate superior, Dr Bolton, that he investigated a complaint that the Appellant had withdrawn the drain without consulting his colleagues in the Respiratory Team, which he did not consider well-founded as “there was clearly a record in the notes that the team had been involved”. Given that the Appellant withdrew the drain without any consultation, I do not see how that evidence could assist him in relation to these charges.[37]Dr Ineson dealt with this issue (particularly at Transcript D3/13B-E). He noted that the patient had not asked to see a doctor on the basis that his condition was distressing or deteriorating. He was seen by the Appellant on a routine ward round. The Appellant would have had to have an appropriate sterile pack brought to him, and put gloves on and discuss the procedure with the patient. Dr Ineson considered that that time could have been profitably used in telephoning the Cardiothoracic Team or internal hospital referral agency. Of course, emergency situations do occur in practice, but Dr Ineson did not consider that there was anything to suggest that urgent action was required in this situation, that meant the Appellant acted properly in going against the advice of his Cardiothoracic Team without re-consulting them, although (Dr Ineson considered) he had time to do so.[38]The Panel were entitled to accept that evidence, to the effect that, even if the patient had been in significant pain, there were no indicators for urgent removal of the chest drain, contrary to the advice of the Cardiothoracic Team and without consulting them about its removal. The Panel were experienced and expert. It is simply not possible for me to say that that finding was wrong, based as it was upon the clear evidence of Dr Ineson.[39]For all of those reasons, I do not find that the Panel’s factual finding that the removal of the drain was inappropriate was wrong. Further, on the basis that the patient was not in such pain as to warrant the removal of the drain, that removal was clearly not in the best interests of the patient, and of a standard of care below that expected of a registered medical practitioner. In the event that the removal was inappropriate, the Appellant did not (and could not) seek to suggest otherwise. Grounds of Appeal:

Patient A

[40]In relation to Patient A, as set out above (Paragraph 13), the charges against the Appellant concerned his care of the patient over four separate identified occasions or periods, namely(i) on and immediately after his ward round of 29 January 2006,(ii) on and immediately after the discussion of the patient with his Senior House Officer Dr Sarwar (which itself followed consideration of the patient by the Consultant Orthopaedic Surgeon Mr Kumar) on 31 January 2006,(iii) generally in the first period of the patient’s admission 28 January to 10 March 2006 and(iv) generally in the second period of the patient’s admission 22 to 31 March 2006.[41]However, the Appellant contends that “the central theme [by which I understand him to mean also, ‘the central issue’] of the case was whether there was septic arthritis present at the beginning of the first hospital admission or not” (Grounds Paragraph 9). The Appellant refers to that as “the crucial charge against him” (Supplementary Skeleton Argument Paragraph 11) and “the crux of the entire Fitness to Practice hearing” (Response to the Respondent’s Skeleton Argument Paragraph 62). Properly to consider that issue, some further consideration of the facts relating to Patient A is required.[42]Patient A was admitted to the hospital under the Appellant’s team on 28 January 2006, having been referred by her general practitioner that day. She was initially reviewed, that afternoon, by the Appellant’s Specialist Registrar, Dr Paraiso, who prepared a clinical note. Her immediate history was summarised as follows:
“[Patient] normally fit and well until recently felt severe pain in [right] groin. Treated by GP with antibiotics. [Patient ] today visited GP with pain in [right] leg”
[43]Dr Paraiso’s note of the admission was full and over three pages long. As I have indicated (Paragraph 9 above), it recorded a markedly raised white cell count, neutrophil count and C-reactive protein, which strongly suggested infection. He arrived at the following differential diagnosis:
“(1) Possible sepsis, query septic arthritis, but improved LFT [liver function test] and no fever. Cholangitis - no abdo[minal] pain, no fever. (2) Exclude malignancy- lung with liver onets. (3) ?Arthritis (osteo) [right] hip. (4) Renal impairment. ?Secondary to diclofenac. ? Sepsis.”
[44]It was common ground between the parties that septic arthritis of the hip (or hip sepsis) can be an aggressive and fast developing infection, such that a speedy diagnosis is vital. In the paragraph of their determination on the facts that dealt with Heads of Charge Paragraph 3(c), the Panel noted an extract from the Oxford Handbook of Acute Medicine (Second Edition), that:
“An acute monoarthritis should always be treated as septic arthritis until proved otherwise. Failure to treat septic arthritis is a medical disaster.”
Dr Ineson’s evidence (Transcript D3/18F-21D) was that once hip sepsis had been identified as a possible diagnosis, the most important thing clinically was to disprove it. Both parties accepted that to be the case.[45]The day after Patient A’s admission (29 January 2006), her records show that there was a “PTWR”, i.e. a post-take ward round, by the Appellant with Dr Paraiso. The latter doctor again made the relevant note. That indicated that the patient was still suffering from pain in her right hip, and had a reduced appetite. It continued, “Epigastric tenderness. [Right iliac fosa] tenderness” and noted a differential diagnosis of an abdominal or pelvic tumour. In addition to scans of the abdomen, chest and groin, and the maintenance of broad spectrum antibiotics, the patient was referred to Mr Kumar of the Orthopaedic Surgical Team. There was no specific reference in that note to hip sepsis. However, the Appellant says that the reference to Mr Kumar was made particularly in relation to the possible diagnosis of hip sepsis (see, e.g., Grounds Paragraph 3): and his oral evidence to the Panel was that he discussed the reference to Mr Kumar with Dr Paraiso on 31 January in the context of a possible diagnosis of hip sepsis (Transcript D4/55A).[46]Chest x-rays were performed on 28 January, which showed the lungs were clear. The same day, a pelvic x-ray was performed which showed the sacro-iliac and left hip joints normal, but the right hip joint showing a moderate loss of joint space. On 30 January, spinal x-rays were taken which showed no bone destruction or collapse there.[47]Patient A was seen by Mr Kumar on 31 January. He noted osteo-arthritis on the scan, considered the possibility of bone cancer and requested a number of further tests, including a bone scan. Mr Kumar’s note does not refer to the possibility of hip sepsis at all: and the Appellant considered that that he “by implication discounted infection of the hip” (Supplementary Skeleton Argument Paragraph 3).[48]He submitted that that implication was confirmed by the results of the bone scan of the right hip that was eventually performed on 14 February. The report of that scan read as follows: “Isotope Scan (Bone). Date of examination: 14 Feb 06. Clinically: ? Infection in the hip. The clinical details seem somewhat variable in this patient. The card suggests that myeloma was the reason for the bone scan. However you will be aware that the bone scan is not considered a 1st line test for myeloma. After discussion with the clinicians it seems that infection of the left hip was really the reason for the bone scan and therefore a dynamic study has been performed. No abnormality relating to the hips. In particular there is no evidence for infection. There is little non-specific increase uptake of tracer within the right pelvis close to the sacro-iliac joints which could be due to degenerative disease”.[49]Further, the Appellant pointed out that even later, when the head of the right femur crushed through the pelvic bone, an x-ray taken on about 23 March 2006 (after the patient’s second admission) showed the femur head to be intact, which, he submitted, it would not have been by that stage if there had been a hip sepsis as early as 31 January.[50]The Appellant referred to the Oxford Handbook which notes that, in respect of septic arthritis:
“50% of cartilage glycoprotein is lost within 48 hours, and bone loss is evident within 7 days”
. Given the absence of any bone destruction on the bone scan of 14 February (two weeks after the post-take ward round on 31 January) or significant damage to the femur head on 23 March, the Appellant submitted that it is inconceivable that the patient was suffering from hip sepsis on 31 January. In those circumstances, he could not properly be criticised for failing to diagnose hip sepsis then. In any event, he submitted that, even if the patient was suffering from hip sepsis then and he failed to diagnose it, he could not properly be criticised for doing so, because Mr Kumar (the hospital expert in the field, and the person to whom the Appellant referred Patient A particularly to consider hip sepsis), excluded such a diagnosis two days later, on 31 January.[51]The GMC did not accept before the Panel - and still do not accept - that Mr Kumar’s intervention and report on 31 January and/or the results of the bone scan on 14 February and/or the evidence from the later x-ray of the femur head ruled out the possibility of hip sepsis being present on 29 or 31 January. The Appellant himself at the hearing before the Panel accepted that it was possible (although, he considered, not probable) that Patient A had hip sepsis on admission, i.e. on 28 January (Transcript D4/69H and D5/15F). Dr Ineson gave evidence that, by the end of January, Patient A had been treated with a significant quantity of broad spectrum antibiotics which may have been sufficient to suppress a hip infection without curing it, in other words those antibiotics may have had a masking effect (Transcript D3/37B-C). Further, Dr Ineson explained that a bone scan is not the investigation of choice for sepsis, that being aspiration of the joint to get some fluid to investigate for infection (Transcript D3/28A-C, D3/30B-F and D4/14G-H). Therefore, there was some evidence upon which the Panel could have found that Patient A was suffering from hip sepsis on first admission, or by 29 or 31 January 2006.[52]However, although in a clinical context I understand why the Appellant may be concerned that he did not fail to diagnose such an infection when he first saw the patient on 29 January 2006, the GMC case in relation to Patient A before the Panel was not dependent upon Patient A having a hip sepsis as at 29 January 2006 and/or the Appellant failing to diagnose such an infection then: and the Panel did not make any finding, against the Appellant, either that Patient A had a hip sepsis as at that date or that the Appellant had then failed to diagnose it. For the purposes of the Panel hearing, and this appeal, the Appellant’s focus upon these matters was and is ill-conceived.[53]So far as the 29 January 2006 ward round is concerned, the charges against the Appellant are those within Heads of Charge Paragraph 3. The pertinent charges and findings were that, that day, the Appellant(i) failed adequately to examine Patient A,(ii) failed to consider hip sepsis or adequately to review the previous differential diagnosis made upon admission by Dr Paraiso (which included hip sepsis), and(iii) failed to provide leadership or guidance in relation to Patient A’s ongoing care. The Appellant properly conceded during the course of his submission that Heads of Charge Paragraph 3(d) (failure to take into account that the white cell count and inflammatory markers were markedly raised in the patient) and (e) (failure adequately to investigate the possibility of sepsis) were effectively incorporated into other sub-paragraphs of that charge (and are incorporated into (ii) above). None of those charges, or consequential findings, was dependent upon Patient A in fact having a hip sepsis on 29 January, or upon the Appellant failing to diagnose any such infection as may have been present. The thrust of the charges against the Appellant arising from both the 29 January ward round and the 31 January discussion with Dr Sarwar was that, until the possibility of hip sepsis had been disproved, all steps ought to have been taken to disprove it. The Appellant, the GMC contended, had not taken or initiated all such appropriate steps.[54]The Appellant responded to that contention by submitting that the possibility of hip sepsis had been disproved by 31 January, because the Appellant was entitled reasonably to consider that Mr Kumar’s report of that date discounted it: and, on 29 January, he (the Appellant) acted reasonably and entirely appropriately in referring the patient to Mr Kumar especially in order to have the possibility discounted.[55]The GMC’s response to that contention in relation to the Appellant’s actions on the 29 January post-take ward round was focussed on the clinical note of that round, made by Dr Paraiso.[56]The Appellant accepted before both the Panel and before me that the medical record keeping in this case (by both him and other members of his team) was inadequate, and not in compliance with Section 3 of Good Medical Practice which requires a medical practitioner to:
“Keep clear, accurate, legible and contemporaneous patient records which report the relevant clinical findings, the decisions made, the information given to patients and any drugs or other treatment prescribed.”
[57]He said that the proper taking of a note was a general issue in the hospital as a whole, although he said the problem has subsequently been remedied (Response to Respondent’s Skeleton Paragraph 42): but he conceded that, in this case, he was not compliant with that good practice. Before me, he referred to a “dearth of notes”: and, in his evidence to the Panel, he accepted that “one of the key problems” with considering the 29 January ward round was that the notes were “not really adequate” (Transcript D4/55B).[58]However, he said that the Panel had oral evidence from him, and from Dr Paraiso, as to what happened and what was discussed on 29 January. Much of what was said and done on that round was missing from the notes, he said. The Appellant gave evidence that he did examine (and adequately examine) Patient A, “from head to toe” (Transcript D4/54G), which evidence was corroborated in very general terms by Dr Paraiso (Transcript D1/70 B-H); and that he adequately considered the differential diagnosis of Dr Paraiso and in particular that he did consider with Dr Paraiso the possibility of hip sepsis, that resulted in the referral to Mr Kumar (Transcript D4/54G-55B), which evidence was (he said) corroborated by Dr Paraiso (Transcript D1/70C-F, and 77H-78B). Similarly, the Appellant said that, although not reflected in the medical records, he did give proper leadership and guidance to his team, in respect of which he, again, said he had given oral evidence (Transcript D5/34B, and 39C-H). Again, he referred to members of his team who gave evidence that they considered they did have adequate guidance and leadership (e.g. Dr Paraiso Transcript D1/76G, 77G and 78E-79B, and his Senior House Officers Dr Beh Transcript D1/96C-G and Dr Sarwar Transcript D2/37C-F, 38G-H).[59]Leaving aside the fact that the corroboration of the Appellant’s evidence by (e.g.) Dr Paraiso does not, from the transcript, appear to me to be as compelling as the Appellant considers it to be, it is clear from both the transcript and the determination on the facts itself that the Panel were impressed by the lack of references in the medical notes that may have supported the Appellant’s oral evidence and assertions. For example, in relation to the charge that the Appellant had failed to conduct a full examination of Patient A on 29 January, the determination refers specifically to the absence of evidence from the medical records that the Appellant performed such an examination.[60]Although I consider the Appellant has to an extent exaggerated the corroboration, there was some evidence supporting the Appellant’s contention that the 29 January note did not accurately or fully reflect what had occurred and what was discussed in relation to Patient A that day on the ward round. However, in assessing the extent to which the note made by Dr Paraiso was an accurate reflection, the Panel were entitled to take into account the fact that Dr Paraiso had taken the note on 29 January, and his note the previous day had been very full. The Appellant pointed out that the previous day was an admission, and therefore one might expect to see a much fuller note: but the fact is that Dr Paraiso was certainly not always prey to any general hospital failing to make a proper note. They were also entitled to take into account the evidence of Dr Ineson (especially at Transcript D3/18E-21E and 22E-24G). Dr Ineson, even accepting the general deficiencies in note-taking, said he would have expected a more extensive record to have been kept if the Appellant had actually performed a full examination (the notes do not refer to any examination of the hip at all, although the reference to epigastric tenderness and right iliac fossa tenderness suggests the abdomen was examined), or if he had properly considered the diagnosis of hip sepsis (the only differential diagnosis referred to in the notes being of tumours) (Transcript D3/22G). He considered that, despite any inadequacy in the notes as notes, he had a good idea - a clear view - as to what had happened (Transcript D3/33B-C). Dr Ineson’s opinion was that, on all the evidence, there did not appear to be the sense of urgency that he would have expected if the Appellant had indeed been considering, properly, a diagnosis of hip sepsis. He would have considered a referral to an orthopaedic surgeon on an emergency basis (not for consideration after 48 hours), and consideration of a blood culture even though the patient’s temperature had not peaked. Rather than the steps he would have expected, Dr Ineson referred to what the Appellant did as “a holding situation” (Transcript D3/21C).[61]On the basis of all of the evidence, the Panel were entitled to find that the clinical notes taken on 29 January 2006 substantively reflected what in fact took place. Despite the Appellant’s evidence that he had performed a full examination of the patient of 29 January, and had discussed the possibility of hip sepsis with Dr Paraiso including the referral of the patient to Mr Kumar to disprove that diagnosis, I consider the Panel were well entitled to find that the Appellant’s examination of the patient had not been full (Head of Charge Paragraph 3(a)): that, although he had considered the differential diagnosis of Dr Paraiso of the day before, he did not do so adequately (Paragraph 3(b)): that he had failed to consider the possibility of hip sepsis (Paragraph 3(c)): and that he had failed to provide proper leadership and guidance to his team (Paragraph 3(f)). Those findings were apparently based upon the Panel’s view that, on 29 January, the Appellant failed to take appropriate steps to disprove the diagnosis of hip sepsis - described by Dr Ineson as, at that stage, the most likely diagnosis (Transcript D3/20G). In the light of the clinical record and Dr Ineson’s evidence, that factual finding, upon which the findings in relation to the specific charges within Heads of Charge Paragraph 3 were based, was one clearly open to the Panel to make on the evidence before them.[62]The GMC’s response to the Appellant’s contention that, by 31 January 2006 when he had the benefit of Mr Kumar’s advice, he (the Appellant) was entitled to work from the basis that a diagnosis of hip sepsis had been disproved was two-fold.[63]First, they did not accept that Mr Kumar’s advice ruled out the possibility of hip sepsis. As I have already indicated, Dr Ineson gave evidence that, by the end of January, Patient A had been treated with a significant quantity of broad spectrum antibiotics which may been sufficient to suppress a hip infection without curing it, in other words those antibiotics may have had a masking effect (D3/37B-C). That evidence was not that the antibiotics that had been administered to the patient may have merely alleviated her symptoms (as, say, analgesics may do), but that the broad spectrum antibiotics may have suppressed the infection itself, so that it did not take the course - it did not spread as aggressively or as quickly - that it might otherwise have done. Such antibiotics would have attacked the infection: and, whilst not being curative, Dr Ineson said that they may have at least to an extent controlled the infection, consequently masking it (Transcript D4/15B-D). Again, that was evidence that the Panel were entitled to consider, and accept.[64]But, in any event, the patient was not stable after Mr Kumar’s examination of the patient on 31 January, which grounded the GMC’s second response. Later that same day, the patient was seen on a ward round by the Appellant’s Senior House Officer Dr Sarwar. He noted Patient A as “having increased confusion and pain in the right hip”, and that the patient was totally disorientated, not knowing where she was, or the date or time, or her own address. At 5.25pm, Dr Sarwar discussed the patient with the Appellant. The notes are marked, “Bone scan awaited”.[65]Dr Ineson explained to the Panel that this confusion in the patient meant that things had dramatically worsened - “things were going… from bad to worse” - because it suggested a systemic problem, rather than a local one (Transcript D3/24G and following). It was then, considered Dr Ineson, even more important that the source of the infection was identified and not masked by general broad spectrum antibiotics. But that was simply not done. The position was still simply “held”, pending the bone scan. Several junior doctors mark the notes with “Awaiting bone scan” or the like during the next two weeks, during which the broad spectrum antibiotics were maintained - and the patient is noted as becoming symptomatically better - but no steps were initiated by the Appellant after 31 January to ascertain the source of the infection, other than simply to wait for the result of the bone scan.[66]On the basis of this evidence, the Panel found (under Heads of Charge Paragraph 4) that, following the discussion with Dr Kumar on 31 January, the Appellant failed to enter either a differential diagnosis or management plan in the patient’s medical records. He accepts that he did not enter either. Further, the Panel found that, at this stage, the Appellant recommended treatment with broad-spectrum intravenous antibiotics. He did. Finally, the Panel found that the Appellant failed to initiate an investigation into the source of Patient A’s infection. On the basis of all the evidence (but particularly that of Dr Ineson) again that was a finding that the Panel were fully entitled to make. They clearly did so on the basis that they accepted the thrust of Dr Ineson’s evidence, finding that, particularly given the deterioration of the patient’s condition, in terms of investigation it was simply not sufficient to wait for the results of the bone scan (in the event, two weeks away), and that the Appellant ought to have directed his juniors to be prepared to take a blood culture should the criteria of the hospital (i.e. in relation to temperature peak) be met. They were entitled to find that, in the circumstances, there was no investigation initiated, at a time when the patient’s deteriorating condition demanded it.[67]Heads of Charge Paragraph 5 relates to the period 28 January to the patient’s discharge on 10 March 2006. During that period, the Appellant apparently saw the patient only once (on 29 January) and indeed he was away from the hospital on leave from 3 to 14 February (as noted in the panel’s determination): but, he submitted, “the patient was seen and adequately treated by [his] team” throughout this period.[68]The Appellant accepted that, directly, he had little to do with Patient A during this period. He was away from the hospital for part of it (specifically referred to by the Panel in their determination), and he left her treatment to other members of his team in any event. He was away when Dr Beh (another of his Senior House Officers) discharged Patient A on 10 March. Before the Panel, there was no evidence of any discussion between the Appellant and his team in respect of criteria that would govern the patient’s discharge - he merely said that, “The idea was to discharge her when she was completely well” (Transcript D/64D) which, he thought, Dr Beh knew or should have known well. However, the Appellant accepted (Transcript D4/64G) that Dr Beh ought to have had concerns about discharging the patient at a time when her inflammatory markers were not back to normal. The Appellant thought that he was wrong to discharge her, or at least wrong to discharge her without having at least sought advice from his Registrar (Transcript D/64G). Dr Beh, on the other hand, said that, generally, he did not get much supervision - only on ward rounds with the Appellant - but he said the Appellant was available when he (Dr Beh) thought something needed review. Dr Beh said that there was “probably not a lot” of supervision in relation to Patient A “as [he, i.e. Dr Beh] felt that the patient did not really need too much medical input at that time” (Transcript D1/101). There was therefore apparently a considerable gap between the Appellant’s expectations of Dr Beh, and Dr Beh’s ability to work without supervision.[69]Dr Ineson considered that there was no evidence that the Appellant had taken a lead with the care of this patient in this period, and little supervision (Transcript D3/32F and following). He thought that supervision was lacking on 31 January (when Dr Sarwar spoke to the Appellant after the patient’s condition worsened) and then “almost entirely disappeared” (Transcript D3/33A): and, during this period, there simply was not a sufficient attempt to make a definitive diagnosis (D3/33B).[70]In relation to the specific charges in respect of this period, set out in Heads of Charge Paragraph 5, the Appellant in effect accepted several. He accepted that the medical records were not adequate, both in relation to his part in the patient’s care and in respect of her care more generally. In relation to the Appellant not obtaining the opinion of a second geriatrician, the Panel did not criticise him for that: they found that, although he did not take that opinion, that failure was neither below the standards of reasonable care nor was it contrary to the best interests of the patient. However, in relation to the other factual matters in issue, they found that he failed(i) to attempt to make a definitive diagnosis of Patient A’s condition,(ii) to take the lead in initiating steps to try and identify the source of Patient A’s infection, and(iii) adequately to supervise junior doctors involved in Patient A’s care. Those were findings open to the Panel to make on the evidence, particularly that of Dr Ineson. His clear view was that, during this period, it was not appropriate for the Appellant to take the stance that the patient should be given broad spectrum antibiotics whilst the results of the bone scan were awaited. That was the Appellant’s stance, and it was open to the Panel to find that, in taking it, the Appellant failed sensibly to attempt a diagnosis or take a lead in initiating diagnostic enquiries, or adequately to supervise junior doctors in the care of the patient, such care inevitably incorporating the initiation of sensible investigations into the patient’s diagnosis.[71]Heads of Charge Paragraph 6 relate to the period from the patient’s readmission on 22 March until her care was taken over by Mr Kumar’s team on 31 March.[72]The Appellant conceded before me that, had he known of Patient A’s readmission, then the care of her would have been different. He said it was obvious on that readmission that hip sepsis was high on a list of differential diagnoses, and, if the Appellant had seen her earlier, he would have treated her accordingly. He would have pushed the Orthopaedic Team to take over her care more quickly, the treatment he would have been looking at being specific antibiotics for septic arthritis and surgical intervention.[73]However, he said that he did not know of her readmission until he saw her on 31 March. Dr Paraiso certainly appears to have seen the patient on 27 March; and the Panel found:
“It is of the view that [the Appellant’s] junior doctors would have informed [the Appellant] that she had been readmitted, given that she had anaemia, had received a blood transfusion, was being given intravenous antibiotics during this time and particularly in the light of [the Appellant’s] evidence that [he] had daily discussions about patients under [his]care”
. That seems to be a reference to the Appellant’s evidence that he had daily meetings with his junior doctors (Transcript D5/34B-C).[74]Again, the evidence supported such a finding. The Panel were entitled to find on the evidence that the Appellant knew of Patient A’s readmission, for the reasons they gave.[75]The charges within Heads of Charge Paragraph 6 are essentially accepted by the Appellant. He accepted that, in the period 22 to 31 March, he did not review Patient A nor have any real input into her care. His appeal in respect of these matters in reality related to the Panel’s finding under Heads of Charge Paragraph 7, namely that the acts and omissions of the Appellant in relation to Patient A, as alleged in Heads of Charge Paragraphs 3-6, were not in the best interests of that patient and were of a standard of care below that expected of a registered medical practitioner, to which I shall turn very shortly.[76]However, first I should conclude on Heads of Charge Paragraphs 3-6. I have indicated that, in relation to each of their factual findings, the Panel had substantial evidence upon which to make the findings that they in fact made. I appreciate that the Appellant does not agree with those findings - and I also appreciate that this is a rehearing, in the sense I have described - but, given the expert nature of the tribunal and the fact that they heard all of the relevant witnesses (including Dr Ineson, whose evidence they clearly in substance accepted in relation to many matters), I am not persuaded the Panel were wrong in relation to any of their factual findings in respect of Patient A. Most of the findings were in the context of clinical practice and procedure. The evidence upon which the Panel made their findings was substantial and, able as Dr Odes’s submissions were, he has failed by some margin to persuade me that this should (or, indeed, properly could) interfere with the primary factual findings the Panel made.[77]Turning to Heads of Charge Paragraph 7, the Appellant made no substantial appeal against the Panel’s findings, over and above the challenge he made to the underlying factual basis, which I have already dealt with. There is no force in the Appellant’s suggestion (in, e.g., Grounds Paragraph 11) that the Panel failed properly or adequately to take into account systemic factors relating to patient A’s care, such as the role of other consultants during the Appellant’s period away, or the workload on the Appellant and his team. The Panel heard evidence of these matters, and there is nothing to suggest that they did not take them into account as they, as an experienced professional panel, considered appropriate. They were entitled to consider, as they clearly did, that they did not detract from the Appellant’s own misconduct or his responsibility for that conduct as they found it to be.[78]In the light of the factual concession made by the Appellant and the findings made by the Panel, and especially in the light of the evidence of Dr Ineson, I do not consider it is arguable that the Panel were wrong in finding that those acts and omissions of the Appellant were below the standard expected of a medical practitioner and were not in the best interests of Patient A.

Impairment

[79]The Appellant’s main challenge to the Panel’s finding that his fitness to practise was impaired was based upon his challenge to the underlying facts as found by the Panel. However, even on the basis of those facts, he submitted that the finding of impairment against him was wrong on two grounds.[80]First, he submitted that the Panel adopted the wrong approach to impairment, focusing exclusively upon his acts and omissions in relation to Patients A and B and ignoring the fact that he has been in practice over many years and has treated many patients not only without complaint but, as his appraisals show, well. He relied upon Cohen v General Medical Council [2008] EWHC 581, in which Silber J said (at [62]-[65]):
“62. [W]hen fitness to practice is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor’s misconduct, his or her fitness to practice has been impaired. It must not be forgotten that a finding of impairment in respect of fitness to practice determines whether sanctions can be imposed… 63. I must stress that the fact that stage 2 is separate from stage 1 shows that it was not intended that in every case of misconduct found at stage 1 must automatically mean that the practitioner’s fitness to practice is impaired. 64. There must always be situations in which a panel can properly conclude that the act of misconduct was an isolated error on the part of the medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired…. 65. … It must be highly relevant in determining if a doctor’s fitness to practice is impaired that, first, his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated….”
[81]The Appellant’s ground of appeal is quite clear: he submits that the procedure or approach of the Panel to the issue of impairment was incorrect (Supplementary Skeleton Argument Paragraph 63).[82]However, without doubt, the Panel purported to adopt the correct approach. They referred to Cohen and indeed quoted from Paragraph 65 of that case (quoted above). They expressly indicated that they considered the documents relating to the Appellant’s workload and appraisals were relevant to this stage, when impairment was being considered. In a detailed determination, they identified the ways in which the Appellant fell below good practice for a doctor on the basis of the factual findings they had made, finding that, in relation to Patients A and B, the conduct did not represent a single error, “but rather a series of misjudgements” and “persistent failures to meet the standards set out in Good Medical Practice”. They found that the Appellant’s actions “fell seriously short of the standards of competence, care and conduct that the public and patients are entitled to expect from doctors”. His failings, they found, disclosed a lack of insight by the Appellant, who had tended to deflect criticism of him towards either other individual doctors or onto the systems within which he worked. That persists: whilst now admitting that “the quality of care could have been better” in respect of Patient A, he puts that down to workload and the systems prevailing in the hospital (Response to the Respondent’s Skeleton Argument Paragraph 63).[83]With respect to the Appellant’s submissions, the Panel’s approach simply cannot be faulted. It was patently in accordance with the approach advocated by Cohen, and there is no evidence that the Panel erred in law with regard to applying that approach. The Panel’s determination is comprehensive, and measured. They concluded:
“The Panel is of the view that given its concerns about your lack of insight, the faults you demonstrated at that time are unlikely to be easily remediable, have not been remedied and, moreover, are in danger of being repeated in the future.”
[84]In the circumstances, I cannot conclude that the Panel’s finding in relation to impairment was wrong on this ground.[85]The second ground of challenge of the Panel’s impairment finding relied upon is that Mr Kumar was “exonerated” in respect of his part in Patient A’s care. The Appellant contends that the findings against him (the Appellant) cannot stand in the face of that.[86]The documents the Appellant has lodged show that the GMC conducted a preliminary examination into Mr Kumar’s part in Patient A’s care. An expert Orthopaedic Surgeon, appointed by the GMC, concluded that Mr Kumar’s interpretation of the hip x-ray was incorrect, and the most likely diagnosis as at 31 January 2006 was hip sepsis: and he was critical of Mr Kumar in the delay that occurred in the bone scan and in the diagnosis of hip sepsis. It should be said that Mr Kumar does not accept that interpretation, nor does he accept any criticism of his part in the care of the patient.[87]In a letter to the hospital dated 19 October 2009, the GMC concluded that, despite the strong phrasing of the expert report they had obtained, there was a body of opinion that would find Mr Kumar’s actions reasonable: and, given that this was in any event an isolated incident so far as Mr Kumar was concerned, it would not be appropriate to proceed and the case closed.[88]None of this is of any assistance to the Appellant. First, the exoneration of Mr Kumar did not happen until after the Panel had decided the Appellant’s case. The Panel could not have erred in failing to take the exoneration into account. Second, this new evidence does not substantively assist the Appellant, because his circumstances and those of Mr Kumar are very different. They played different roles in the care of Patient A: their alleged misconduct or misjudgment is very different: and, further, no further action was taken against Mr Kumar in part because any error of judgment on his part was isolated. The Panel found that the misjudgements of the Appellant were many, involving two patients: and they exhibited a lack of insight on his part, not suggested on the part of Mr Kumar. For those reasons, I would decline to accept this new evidence in this appeal: but, if it were accepted, it would not arguably found a ground of appeal against the determination of the Panel.

Sanction

[89]Finally, I come to sanction. Again, the Appellant’s main contention was that the factual findings upon which sanction (as well as the finding of impairment) was based were flawed. However, even if they were not (as I have found), the Appellant submits that the sanction is excessive and wrong, because of the effect that it will have on both the running of the hospital and his own career.[90]Two initial points. First, as has often been said in this court (and its predecessor in this jurisdiction, the Privy Council), the primary object of imposing a sanction is to maintain the standing of the profession and the confidence of the public in the profession, although the need to protect individual patients (in terms of ensuring no repetition) is also a purpose (Bolton v The Law Society [1994] 1 WLR 512 especially at pages 518-9, Raschid and Fatnani v GMC [2007] EWCA Civ 46 at [18] and Cheatle v GMC [2009] EWHC 645 (Admin) at [33]). The impact of the sanction on the practitioner is also relevant, because the Panel can only impose a sanction that is proportionate: but, as the primary objectives concern the wider public interest, the impact of a sanction on a practitioner has been said not to be “a primary consideration” (Cheatle at [38] and [40]). Those principles are broadly reflected in the GMC Indicative Sanctions Guidance for Fitness to Practise Panels (especially at paragraphs 18-22), and are set out by the Panel in their determination on sanction.[91]Second, as I have already stressed, the Panel being a professional disciplinary tribunal, their judgment in relation to matters bearing upon the profession is worthy of considerable respect (see Paragraph 17 above). This is particularly so in relation findings in respect of sanction, which peculiarly requires professional judgment, which Parliament has assigned the GMC to deal with through professional panels. This court is therefore slow to interfere with a sanction imposed by a panel of the GMC, and will do so only where the panel’s decision is “clearly inappropriate” (see the cases cited above in Paragraph 14, especially Cheatle at [15] and [35]).[92]Again, in relation to sanction, the approach of the Panel in this case cannot be criticised. Having made findings in relation to impairment, the Panel considered how serious those findings were in relation to the standing of the profession, whilst acknowledging the importance of proportionality in the light of the Appellant’s own important interest in maintaining his career and earning capacity. They specifically took into account the Appellant’s importance to the hospital - and to his colleagues - and the fact that he had had no other complaints against him. The Panel did not arguably leave out of account any matter relevant to sanction, nor did they include in their consideration any irrelevant matter. They clearly took into account the Appellant’s recent appraisals, and considered his fitness to practise as at the date of the hearing. In their determination, they were not bound to refer to the fact that the Hospital Trust had not taken any disciplinary action against the Appellant in relation to these incidents, if they did not consider that to be a factor of significant weight in that determination. It was not put forward by the Appellant as a weighty factor.[93]The Panel approached the question of sanction by considering the available sanctions in turn, moving upwards from the least serious. The Panel considered the substantial evidence submitted by the Appellant as to his abilities as a medical practitioner and the extent to which colleagues value his commitment and skill as a doctor. However, having done so, they found that the seriousness of the misconduct, in all the circumstances, was such that taking no action, relying upon the Appellant’s own undertakings as he offered or a period of conditional registration would be inadequate, given the pattern of behaviour demonstrated, the Appellant’s misjudgements and lack of insight as they found them to be. The Panel noted that the Appellant had still not acknowledged that he had made mistakes that were his fault: and he had failed to supervise adequately his junior staff. They found that this exhibited an attitude that could not properly be addressed by a conditional registration, which would also not have reflected the seriousness of the misconduct in the Panel’s view. Having taken into account the relevant guidance, they decided that the appropriate sanction would be a period of suspension of 4 months.[94]I do not accept the Appellant’s submission that the sanction is purely punitive, without consideration of the other factors relevant to sanction to which the Panel themselves referred in their determination. The determination on sanction is fully reasoned, and discloses no error in approach or other legal error. In the circumstances, given the Panel’s experience and expertise, I cannot say that this sanction is clearly inappropriate or wrong, even in the light of the Appellant’s lengthy career in medicine, a career without other complaint. In all of the circumstances of this case, it was a sanction that was clearly appropriate for the Panel to impose.

Costs

[95]The parties have made submissions in writing in relation to costs, which I have considered.[96]Whilst of course costs are in the general discretion of the court, the general rule is that an unsuccessful party will be ordered to pay the costs of the successful party (CPR Rule 44.3 (1) and (2)). The GMC, quite properly, put the Appellant on notice that it would seek an order for costs against him if the appeal were unsuccessful. Whilst I appreciate that this is a public law case and that the Appellant’s circumstances (including, of course, his impending period of suspension) are such that he may find it difficult to meet the GMC’s costs of the appeal, nothing in the Appellant’s submissions on costs persuade me that the usual order should not be made. I shall make that usual order.

Conclusion

[97]For the reasons I have given, I shall dismiss the appeal, and order the Appellant to pay the Respondent GMC’s costs to be the subject of a detailed assessment on the standard basis if not agreed.

Cited in 2 later judgments